Waiter sacked after five shifts awarded almost $20,000

A man hired as a waiter, but told he was a “useless” cook, has been awarded almost $20,000 for being sacked after just five shifts.

Peterasp Kershaw was employed as a waiter by Carpe Diem Restaurant and Bar Limited in Orewa in October 2020. He was dismissed a month later.

He raised a personal grievance in February 2021, which was unchallenged by the employer, whom the Employment Relations Authority said had failed to engage at any level of the process.

The authority has now awarded Kershaw $18,470 in lost wages, compensation, holiday pay and Kiwisaver arrears, penalties and administration fees. The business has also been ordered to pay interest on the total arrears.

In mid-October 2020, Kershaw applied for a waiter position advertised by Carpe Diem to supplement his main job at another business. He indicated a preference to work on Wednesdays which was his day off from his other job, but said he could pick up other shifts if available.

He was to be paid $21 per hour and his wages were to be direct credited into his bank account every Thursday. No written employment agreement was provided.

Kershaw worked two full days before his third Wednesday shift was cancelled. He then worked a Saturday, followed by a five-hour shift the following Tuesday.

He was unaware at the time but Kershaw’s final shift for Carpe Diem was on Wednesday November 18, 2020, which lasted for only two hours.

When he turned up for work that morning, he was told by a close associate of the café manager Melissa Davies to work in the kitchen and cook food because the previous chef had been “fired without notice”.

Kershaw was reluctant because he had no experience with cooking food and was not employed in that capacity. However, he was told that if he did not cook food, he would be given a written warning.

Kershaw described the shift as a “complete disaster”, and after two hours he was told to go home because he was “completely useless”.

By his own admission, Kershaw stated that some French fries he had tried to make had come out “raw”.

ERA member Peter Fuiava later found that being ordered into the kitchen met the threshold of being one of two unjustified disadvantages claimed by Kershaw.

“Under the threat of a written warning, he was pressured into working in the kitchen to cook food. This was against the health and safety concerns Mr Kershaw had for himself, and other customers given that he did not know how to cook.”

Fuiava said the “coercive action” by Carpe Diem fell well short of the statutory test of what a fair and reasonable employer could have done in the circumstances.

“Instead of allowing Mr Kershaw to complete the remainder of his shift waiting tables; the role for which he had been employed, he was sent home after working only two hours of an eight-hour shift.

“I accept that Mr Kershaw was made to feel useless by Ms Davies’ associate and that he had been verbally abused.”

In Kershaw’s submission to the ERA he said the only wages he received from Carpe Diem was $301 paid on November 17. A few days later Davies sent a text to Kershaw, accusing him of costing the business $140 when a customer left without paying, and forwarding him the customer’s purported message which criticised his service.

Kershaw denied responsibility for the incident stating that he had served the customer, but that Davies’ associate had him working both in the kitchen and serving customers that day.

Kershaw said attempts to talk with Davies about it became heated and ended with her seeking reimbursement from him.

A few days later Kershaw texted Davies that he had not received his wages. She responded that he would need to wait until matters were sorted out with accounts as his “hours did not match up”.

She also advised Kershaw that he was no longer required by Carpe Diem. He did not get a response as to why, and his outstanding wages remained unpaid.

Kershaw then engaged an employment advocate who raised a personal grievance with Carpe Diem on December 1, 2020. Shortly after, Davies was said to have contacted Kershaw’s other employer to let him know of the problems he was causing Carpe Diem.

Kershaw submitted to the ERA that Davies had made disparaging comments about him which were not only embarrassing but caused him to worry he would lose his sole source of income. He said he felt “publicly vilified”.

Proceedings in the ERA began on February 2, 2021, when Kershaw lodged a Statement of Problem. The document was served on Carpe Diem at its registered office a few days later but no Statement in Reply was filed.

In August last year a case management conference was attended by a representative for Kershaw, but there was no appearance by the employer. ERA member Peter Fuiava said in his decision that when the Authority telephoned the company director, Grant Solley, he hung up.

“The authority officer attempted to call Mr Solley again, but the call went straight to his voicemail. A message was left for Mr Solley that the case management conference was proceeding. He did not rejoin the teleconference.”

Directions were then made in Carpe Diem’s absence and a written minute from the authority was emailed to both parties. An investigation meeting was held last November by audio visual link, due to the Covid alert levels in Auckland. Kershaw and his father attended the meeting remotely, but there was no appearance by Carpe Diem.

In determining levels of compensation, Fuiava said that what stood out was how Kershaw had been treated including that he had been forced to work in the kitchen under the threat of a written warning; the gratuitous verbal abuse he received from Davies’ associate while doing his best to cook food as well as serve customers; and the post-termination conduct of Davies contacting Kershaw’s sole remaining employer in order to disparage him.

The ERA said little was known about the financial ability of Carpe Diem to pay a penalty or whether it was actively trading, even though the company was still registered with the Companies Office.

Open Justice called a cell phone number listed on the restaurant’s website and spoke with a woman who claimed to be the interior decorator. She said she understood there were a number of aggravating circumstances, not least that the business had suffered as a result of Covid-induced challenges.

In answer to a question as to why the business had not responded to the ERA’s multiple invitations to take part in the process she claimed that the owner, Grant Solley, had been dealing with his own challenges.

Kershaw told Open Justice he was an experienced hospitality worker, having lived in Singapore for the past eight years where he had been working and studying. He was hopeful of receiving the money awarded him, but not convinced.

“Honestly, I would give it a 70 per cent ‘no’, and 30 per cent ‘yes’.”

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